UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMMETT MADISON GRAHAM, JR.,
Defendant-Appellant.

No. 01-4682

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-97-98)
Submitted: April 9, 2002
Decided: May 3, 2002
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL
Melisa W. Gay, Mount Pleasant, South Carolina, for Appellant. John
Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

UNITED STATES v. GRAHAM

OPINION
PER CURIAM:
Emmett Madison Graham appeals his sentence imposed after resentencing pursuant to an order granting in part 28 U.S.C.A. 2255
(West Supp. 2001) relief. At re-sentencing, the district court departed
upward and imposed a 115-month term of imprisonment. On appeal,
Graham argues that his conviction and sentence should be vacated
due to challenges based upon Apprendi v. New Jersey, 530 U.S. 466
(2000), and Castillo v. United States, 530 U.S. 120 (2000), that the
district court erred in departing upward based upon Grahams criminal history, and that the court erred in re-assessing monetary penalties
imposed by the original judgment. Finding no error, we affirm.
We find that the issues related to Apprendi and Castillo are collateral attacks on Grahams conviction and original sentence, and were
decided previously by the district court in Grahams 28 U.S.C.A.
2255 proceeding. Any claim that does not originate from a resentencing order is deemed a collateral attack. In re Taylor, 171 F.3d
185, 187-88 (4th Cir. 1999). If Apprendi issues raised on direct appeal
were not at issue by reason of re-sentencing, the claims are deemed
a collateral attack. United States v. Smith, 241 F.3d 546, 548 (7th
Cir.), cert. denied, 122 S. Ct. 267 (2001). Graham previously filed an
appeal of the order adjudicating these claims, and we dismissed the
appeal on grounds unrelated to the merits of the claims.
The district court decided to depart upward in sentencing Graham
because he had several convictions that were not counted in determining his criminal history score. In particular, the court cited three convictions for driving while impaired in 1975, 1978, and 1983, with the
1978 offense warranting a one-year term of imprisonment. In addition
to its statements at re-sentencing, the court discussed the possible
departure in the May 11, 2001, order, directing re-sentencing.
The district courts decision to depart is reviewed for abuse of discretion. Koon v. United States, 518 U.S. 81, 98-99 (1996). A district
court may depart on the basis of an encouraged factor if the applicable
guideline does not already take it into account. United States v. Brock,
108 F.3d 31, 34 (4th Cir. 1997). The sentencing guidelines expressly

UNITED STATES v. GRAHAM

encourage departure when a defendants criminal history category

does not adequately reflect the seriousness of his past criminal conduct or the likelihood that he will commit further crimes. U.S. Sentencing Guidelines Manual 4A1.3, p.s. (2000); United States v.
Cash, 983 F.2d 558, 560 (4th Cir. 1992). Reviewing the record as a
whole, we conclude that the district court did not abuse its discretion
in departing upward.
Graham argues that the re-assessment of the $150 special assessment is a violation of double jeopardy principles because the original
judgment imposed the same assessment. He also argues that it was
error for the court to impose the $6,000 fine because he is unable to
pay it, and therefore the penalty was excessive and constitutes reversible error.
First, the court properly imposed the $150 special assessment. At
the time Graham committed the crimes, 18 U.S.C. 3013 (1994)
required a $50 special assessment for each felony conviction, thus
resulting in a $150 assessment for Grahams three counts of conviction. The re-imposed special assessment does not subject him to double jeopardy because the amended judgment supersedes the original
judgment and does not require payment of a second special assessment.
Graham did not challenge the fines imposed either on direct appeal
from the original judgment or in the 2255 motion; therefore, he is
barred from raising the issue for the first time in the re-sentencing
proceeding. Although the district court actually reduced Grahams
fine sua sponte, concomitant with the reduction in term of imprisonment imposed, he is without an avenue for relief. A judgment containing a fine is final unless it is subsequently modified or remitted under
18 U.S.C. 3573 (1994), corrected under Fed. R. Crim. P. 35 or 18
U.S.C. 3742 (1994), or appealed and modified under 18 U.S.C.
3742. 18 U.S.C. 3572 (1994). Graham has not had his fine revised
under any of these statutory procedures or on review from the original
sentence and therefore, the penalties are not subject to review.
We therefore affirm the amended judgment. We dispense with oral
argument because the facts and legal contentions are adequately pre-

UNITED STATES v. GRAHAM

sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED